Mistargeted?

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Does the president of the United States have the legal authority to order the killing of an American citizen without charging that person with a crime or bringing him to trial? Evidently, the answer to that question is yes.

Last month a federal judge threw out a lawsuit seeking to prevent the U.S. government from killing the Muslim cleric Anwar al-Awlaki. Awlaki, who was born in New Mexico, is an influential jihadist preacher thought to be hiding in Yemen. He is known to have had some contact with two of the 9/11 hijackers as well as with Maj. Nidal Malik Hasan, the Army psychiatrist who killed thirteen people at Fort Hood in 2009. Awlaki is an incendiary presence on the Internet. According to the U.S. government, he is now helping to plan terrorist attacks. Presumably, that makes Awlaki an “enemy combatant,” and as such he can be legally targeted for death.

The suit was brought by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of Awlaki’s father. The plaintiffs hoped to challenge the scope of presidential power and have the government disclose its criteria for targeting alleged terrorists. Judge John D. Bates, however, simply ruled that the father had no legal standing to file a lawsuit. At the same time, Bates conceded that the case raised “stark and perplexing questions” about the power of the president to “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.” Bates went on to say that it is unlikely that the courts would resolve these troubling questions. He suggested that Congress has the principal oversight role regarding military decisions made by the president. Exactly what that role is has long been a matter of dispute, and the dispute has become much more intense since 9/11.

Targeted killings, usually by means of drone missile strikes, raise a host of difficult moral, political, and legal issues. It is a well-established legal principle that nations at war can target military figures for assassination. In a war, no combatant in the field has a right to due process or a trial. With the passage by Congress in 2001 of the Authority for Use of Military Force, the president was authorized to use “all necessary and appropriate force” against those he determines participated in or aided the 9/11 attacks. As a consequence, few dispute the legality of targeting leaders of Al Qaeda or the Taliban on the battlefield in Afghanistan or in sanctuaries in Pakistan. It is less clear that the same rules apply in Yemen or Somalia, where the United States is not officially engaged in armed conflict. There are a handful of radical imams in England whose exhortations to jihad are little different from Awlaki’s. Does the United States have the right to assassinate them as well? Moreover, doesn’t Awlaki’s U.S. citizenship raise obstacles to placing him on such a “hit list”? Apparently not. Many argue that in joining an organization that has declared war on the United States, Awlaki’s legal status is closer to that of a traitor fighting with enemy forces than that of a citizen advocating an unpopular and dangerous cause.

If the law appears to side with the government in this case, political and moral questions remain. As Michael Walzer has written, while targeting Al Qaeda militants is probably justified, conducting a broad campaign of such killings seems too easy. “It has to be radically circumscribed because governments, once they learn to kill, are likely to kill too much and too often,” Walzer warns. Careful measures must be taken to correctly identify the targets and to limit danger to noncombatants. Using a drone missile to kill a terrorist while he is at home with his wife and children is not morally permissible. Where and how the killing takes place matters. Whether those who are targeted pose an imminent threat also matters. Such killings are acts of war, not of justice. Since Awlaki isn’t operating in a combat zone, wouldn’t it be a better first step to capture and interrogate him? Wouldn’t he be more valuable as a prisoner than as a “kill” and a jihadist martyr? If he is as dangerous as the Obama administration claims, surely he knows things our counterterrorism experts would like to know. Outside of a combat zone, the authority a president has to order a killing should be limited to only the most urgent cases and circumstances. If the courts cannot ensure that outcome, Congress and public opinion must.